November 8, 2017
From Chester County Brian M. Gibbons, Circuit Court Judge
Appellate Defender David Alexander, of Columbia, for
Attorney General Alan McCrory Wilson and Assistant Attorney
General Mark Reynolds Farthing, both of Columbia, and
Solicitor Randy E. Newman, Jr., of Lancaster, for Respondent.
for attempted murder, Bobby R. Sims claimed immunity from
prosecution pursuant to the Protection of Persons and
Property Act (Act), SC Code sections 16-11-410 to 450 (2015
and Supp. 2017). The trial court held an evidentiary hearing
and denied Sims' immunity claim. Sims then pled guilty to
the lesser-included offense of assault and battery of a high
and aggravated nature (ABHAN). He now appeals, contending his
assertion of immunity is a jurisdictional challenge a
defendant may raise on appeal even after pleading guilty.
Finding Sims' argument fits no exception to our steadfast
rule against conditional guilty pleas, we affirm.
principles of South Carolina criminal law are as ingrained as
the notion that a knowing, voluntary, and intelligent guilty
plea "constitutes a waiver of nonjurisdictional defects
and claims of violations of constitutional rights."
State v. Rice, 401 S.C. 330, 331-32, 737 S.E.2d 485,
485 (2013). Conditional pleas are not only ignored, but
condemned. State v. Truesdale, 278 S.C. 368, 370,
296 S.E.2d 528, 529 (1982) (conditional plea "is a
practice not recognized in South Carolina and a practice
which we expressly disapprove"). A trial court is
obligated to reject a defendant's attempt to hedge his
bets by offering a conditional plea, State v. Inman,
395 S.C. 539, 555, 720 S.E.2d 31, 40 (2011), and if it does
not, the conditional plea will be vacated on appeal.
valid guilty plea waives "nonjurisdictional"
defects and defenses, it is unclear what amounts to a
jurisdictional defect to a criminal prosecution. Sims does
not contest personal jurisdiction. Nor does he argue the
court lacked subject matter jurisdiction over his ABHAN
prosecution in the sense State v. Gentry, 363 S.C.
93, 100, 610 S.E.2d 494, 498 (2005), defines it: the very
power of the court to hear and determine the class of cases
of which he was convicted.
because a court has subject matter jurisdiction over the
class of cases a defendant is convicted of does not end our
inquiry into whether a jurisdictional defect sufficient to
survive a guilty plea exists. The jurisdictional power of the
court of general sessions to adjudicate criminal cases is not
unlimited. It does not include, for instance, the power to
convict someone of a statute no longer in effect, In re
Terrence M., 317 S.C. 212, 214, 452 S.E.2d 626, 627 (Ct.
App. 1994), or of a nonexistent offense. Whitner v.
State, 328 S.C. 1, 5, 492 S.E.2d 777, 779 (1997).
ties the jurisdictional defect to the State's lack of
power to prosecute him at all. According to Sims, because
immunity bars prosecution, it necessarily bars the
court's power of jurisdiction over him, and the
legitimacy of that power cannot be waived or conferred by a
guilty plea. He does not-and could not-deny that his guilty
plea operated as an admission of the conduct alleged in the
indictment. Instead, Sims claims the jurisdictional defect is
consistent with the facts established by his plea.
right that the Act is more than a defense to a criminal
charge; a defendant who proves his use of deadly force was
justified by the Act is immune from prosecution. S.C. Code
Ann. §16-11-450(A); State v. Duncan, 392 S.C.
404, 410, 709 S.E.2d 662, 665 (2011)("[W]e find that, by
using the words 'immune from criminal prosecution, '
the legislature intended to create a true immunity, and not
simply an affirmative defense. . . . Immunity under the Act
is therefore a bar to prosecution . . . .").
series of federal cases acknowledge that a defendant's
right not to be "haled into court" implicates the
court's jurisdictional power. These cases hold a
defendant who pleads guilty to something he could not be
properly convicted of does not give up his right to claim he
could not have been prosecuted in the first place.
Blackledge v. Perry, 417 U.S. 21, 30 (1974) (claim
attacking "the very power of the State to bring the
defendant into court to answer the charge brought against
him" survives guilty plea); Menna v. New York,
423 U.S. 61, 62 (1975) (per curiam) (where double jeopardy
would bar State from "haling" defendant into court
on charge, conviction must be set aside "even if the
conviction was entered pursuant to a counseled plea of
guilty"). Later, in United States v. Broce, 488
U.S. 563 (1989), the Court limited Menna to cases
where the double jeopardy violation appears on the face of
the indictment and record. We have followed
Broce's qualification. State v.
Thomason, 341 S.C. 524, 528-29, 543 S.E.2d 708, 710-11
(Ct. App. 2000) (double jeopardy claim not evident from
factual allegations of indictment and record waived by guilty
recently, the Supreme Court has held a federal criminal
defendant who entered an unconditional plea of guilty does
not waive his right to challenge the constitutionality of the
statute of conviction ...